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Eh. Surviving a 12(b)(6) motion and winning on the merits are two different things.

Capitol_Idea wrote:Eh. Surviving a 12(b)(6) motion and winning on the merits are two different things.

Twombly and Iqbal son. Were talking plausibility at least.

OK. So it goes from 'theoeetically arguable' to 'at least barely plausible.' That's hardly precedent for saying Doc Review is definitively not legal work.

For the record, I don't think it is. But I doubt this case is going to make waves just yet.

Capitol_Idea wrote:OK. So it goes from 'theoeetically arguable' to 'at least barely plausible.' That's hardly precedent for saying Doc Review is definitively not legal work.

For the record, I don't think it is. But I doubt this case is going to make waves just yet.

Not disagreeing. Just thought it was a pretty funny excerpt to be shared here.

I don't know what to think of the decision. In the doc reviews that I've supervised, we've generally provided the contract attorneys a list of the various types of documents that are responsive, and then instructed "if it relates in any way to X, Y, or Z, it's responsive." Usually these categories are very broad - for instance, in an FTC review of a merger, anything that relates to competition, pricing decisions, whether to expand into a market, etc., will be responsive. So the reviewers aren't directly analyzing whether a document is responsive to particular RFPs; instead they're just looking to see if something is discussed, and then they code it responsive. It's arguably not legal work.

Privilege is another issue. In my experience, the reviewers themselves determine whether something is AC or WP privileged, so the review would have to be considered legal work. But I think at some firms, the reviewers are instructed to code anything privileged if there's an attorney on the document or it contains phrases like "privileged and confidential," and then a smaller team of smarter reviewers can sort out the mess and prepare a privilege log. So again it's arguably not legal work.

It's still a ruling that doc review is not per se legal work, which is fairly notable on its own.

Yeah I think it can be very case-specific as to whether it is legal work. It probably isn't 90+% of the time.

*2d Cir.

Mod edit: Don't hide behind anon to make posts like this.